Positive reinforcement: Advocating for international criminal justice in Africa

Salc : Staff Writer

Forward by Sanji Mmasenono Monageng, Judge of the International Criminal Court

The entry into force of the Rome Statute of the International Criminal Court in 2002 is likely the most significant event in the coming-of-age of international criminal justice. Many have thought this because it established the first ever permanent court tasked with adjudicating international crimes. Certainly this is an enormous development. But the greater significance of the Rome Statute may be its recognition that the primary location in which international criminal justice is to be secured is the state most directly affected. Only if that state is unwilling or unable genuinely to carry out investigations and prosecutions is the ICC authorised to intervene. It is this – called the principle of complementarity – that is the real hallmark of international criminal justice today.

That complementarity is meaningfully realised requires not only that states ratify the Rome Statute, but that they implement domestic legislation, and that they appoint and apportion sufficient resources to persons and bodies, who have the requisite expertise, tasked with the specialised functions of conducting domestic investigations and prosecutions. That these steps happen, and once put in place, that they aren’t merely for show but are properly used, requires political will. Civil society’s efforts are absolutely crucial to securing that political will.

This report is to be welcomed for demonstrating how civil society actors across the African continent have, through different initiatives, successfully intervened to secure domestic realisation of international criminal justice. The objective of the report is to inspire other civil society actors to more forcefully enter this field, by showing how they might induce their governments – through engagement and advocacy, and sometimes through litigation – to meet the obligations of complementarity.

The report’s focus is on Africa and African civil society – not because there is any belief that the focus of international criminal justice should exclusively be Africa. Of course, it shouldn’t and can’t be. But too much of the debate on international criminal justice and Africa has been presented in negative terms. The fact is that Africa has made a substantial intellectual investment in the international criminal justice project: vocal during the Rome Statute negotiations, the Africa bloc was critical in fending off interventions that would have resulted in a less independent court. Africa also represents the largest regional bloc of states parties to the ICC. Its citizens are represented at all levels of the staff comprising the ICC. In the landscape of global governance, the ICC represents an unprecedented advance – it is a development in which Africa has had a chance to play a critical role and it has seized that chance.

It would be a tragedy were Africa to pull back on it substantial investment now. Not only for the global ramifications. Decades of underdevelopment have left African states with rule of law challenges, to greater and lesser degrees. Domestication of international criminal justice can serve not only to secure accountability for the most heinous crimes, but can also spur systematic legal reform, helping strengthen domestic legal systems and shore up the credibility of local institutions.

My hope is that this report helps make those gains apparent and emboldens state actors and civil society across the African continent to make international criminal justice a domestic reality.

Download the full version of the report in English and French.

 

CHAPTER BY CHAPTER

Forward by Sanji Mmasenono Monageng, Judge of the International Criminal Court

Introduction – an overview of the Report

Chapter 2 – an analysis of why domestic prosecutions are so important in international criminal law

Chapter 3 – an introduction to the Rome Statute and the International Criminal Court

Chapter 4 – an overview of international criminal law in Africa

Chapter 5 – a discussion about the role of civil society in enforcing international criminal justice

Chapter 6 – an overview and comparison of African legislation implementing the Rome Statute, and the responsibilities of civil society in ensuring this legislation is adopted

Chapter 7 – a discussion about state obligations to cooperate with the ICC, and how civil society can ensure states uphold these obligations

Chapter 8 – an overview of the complementarity principle, which places the primary responsibility for prosecuting international crimes on states

For examples of the role civil society has placed in achieving international criminal justice in Africa download our case studies:

Case-Study-1 – a discussion of the litigation brought in Kenya to ensure the country issued an arrest warrant for Sudanese president Bashir

Case-Study-2 – a discussion of the litigation brought in South Africa to ensure the South African authorities initiated an investigation into torture in Zimbabwe

Case-Study-3 – an overview of the Mobile Gender Courts operating in the DRC

Case-Study-4 – a discussion of the outreach and victim participation programme in Kenya

Case-Study-5 – a discussion of the steps taken to bring former Chadian president Habre to justice

Chapter 9 – an assessment of what needs to be done in the future

Chapter 10 – concluding remarks and recommendations

Reading List

To request a copy please send your name and contact details to enquiries@salc.org.za